Law Profs: Mueller's Appointment Unconstitutional; Senate Should Have Confirmed

Conservative radio icon Mark Levin says the appointment of Special Counsel Robert Mueller is unconstitutional – and he’s not the only constitutional scholar to make the case.

On Monday, Levin posted “The Appointment of Robert Mueller Violates the Constitution” on his show’s website. Levin cites the Constitution’s Appointments Clause, arguing that high-level positions such as Mueller’s must be appointed by the president and confirmed by the Senate:

“The appointment of Robert Mueller violates the Appointments Clause of the Constitution. Mueller is not an inferior appointee, but a principal appointee as understood under our constitutional. His powers are more akin to an United States attorney, not an assistant United States attorney.”

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“Indeed, Mueller is more powerful than most United States attorneys, all of whom were nominated by the President and confirmed by the Senate as principal officers.”

“It follows, then, that every subpoena, indictment, and plea agreement involving the Mueller investigation is null and void. Every defendant, suspect, witness, etc., in this matter should challenge the Mueller appointment as a violation of the Appointments Clause.”

Levin credits Northwestern Law School Professor Steven Calabresi for raising many of these points with him over the weekend. “I agree completely with his analysis,” Levin says.

Prof. Calabresi, who served as a special assistant to Attorney General Edwin Meese (1985-87) and a law clerk to Justice Antonin Scalia (1987-88), explained this legal reasoning a week earlier in a May 13, 2018 analysis in the Wall Street Journal, titled, “Mueller’s Investigation Crosses the Line.”

“At issue is the Constitution’s Appointments Clause, which provides that “principal officers” must be appointed by the president with the Senate’s consent. Rehnquist wrote that independent counsel Alexia Morrison qualified as an “inferior officer,” not subject to the appointment process, because her office was “limited in jurisdiction” to “certain federal officials suspected of certain serious federal crimes.”

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“Only a principal officer, such as a U.S. attorney, can behave the way Mr. Mueller is behaving. Mr. Mueller is much more powerful today than any of the 96 U.S. attorneys. He is behaving like a principal officer.”

“Judge Ellis should dismiss the indictment against Mr. Manafort on Appointments Clause grounds. All other defendants Mr. Mueller charges, and witnesses he subpoenas, should challenge the constitutionality of his actions on Appointments Clause grounds.”

In September 26, 2017 testimony before the Senate Judiciary Committee, Sterling Professor of Law and Political Science at Yale University Akhil Reed Amar – a registered Democrat who says he’s no friend to Trump - cited the same “violations of several basic constitutional principles.”

Professor Amar, testifying to the unconstitutionality of Congressional legislation designed to protect Mueller from being fired by President Trump, also laid out the constitutional principle that invalidates Mueller’s appointment:

“I must report that, as a scholar who has studied the Constitution for over thirty years and written extensively on constitutional law, I believe that the bills in their current form are unwise and unconstitutional.”

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“In a nutshell: The bills, if enacted, are likely to be successfully vetoed, and rightly so; are likely to be judicially invalidated, and rightly so; and are in any event violations of several basic constitutional principles.”

Professor Amar cites the Morrison opinion as a reason Mueller’s appointment is unconstitutional:

“A. The Inferior-Means-Inferior Principle

“Even if a Court majority were to try stretch Morrison to cover Mueller, the Constitution itself would still say what it says. And that document clearly says that (apart from recess appointees) appointed officers must either be confirmed by the Senate or they must be truly inferior officers.”

Professor Amar also warned against the shortsightedness of undermining the Constitution to target a single president:

“The current bills undermine the Inferior-Means-Inferior principle by depriving all Oval Office occupants—and not just the one down the street today—of the power to dismiss an inferior-officer underling in whom the president lacks confidence.”

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“Even if a president could somehow properly be limited to firing a federal prosecutor only for cause (and not, for example, because the president prefers only members of his own party in officer positions) the bills fail to make clear that defiance of a lawful presidential order—an order to exercise legitimate discretion this way or that way—is itself automatic good cause.”

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